CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Sunday, December 31, 2017

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Decoding Guilty Minds

Court of Federal Claims - Office of Special Masters, University of Minnesota Law School, University of Virginia - School of Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences and University of California, Irvine School of Law
193
2.

What Not to Do When Your Roommate Is Murdered in Italy: Amanda Knox, Her 'Strange' Behavior, and the Italian Legal System

Emory University School of Law
165
3.

A New Mens Rea for Rape: More Convictions and Less Punishment

Boston College - Law School
100
4.

White Paper of Democratic Criminal Justice

Northwestern University - Pritzker School of Law, Willamette University College of Law, Wayne State University Law School, University of Illinois College of Law, University of Virginia School of Law, Australian National University (ANU) - Research School of Social Sciences (RSSS), Northwestern University - Pritzker School of Law, University of Stirling, Bowling Green State University, Northwestern University - Pritzker School of Law
86
5.

Inclusive Immigrant Justice: Racial Animus and the Origins of Crime-Based Deportation

New York University School of Law Immigrant Rights Clinic
83
6.

How Does the Law Put a Historical Analogy to Work?: Defining the Imposition of ‘A Condition Analogous to That of a Slave’ in Modern Brazil

University of Michigan Law School, CEFOR (Center for Continuing Education and Professional Development) - Chamber of Deputies and UFMG
79
7.

Rethinking the Boundaries of 'Criminal Justice' (Book Review)

University of Colorado Law School
70
8.

Daredevil: Legal (and Moral?) Vigilante

University of Oklahoma College of Law
63
9.

Law, Coercive Enforcement, and Practical Reason

University of Washington - School of Law
61
10.

Clockwork Corporations: A Character Theory of Corporate Punishment

University of Iowa - College of Law
58

December 31, 2017 | Permalink | Comments (0)

Saturday, December 30, 2017

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Assessing Risk Assessment in Action

George Mason University - Antonin Scalia Law School, Faculty
310
2.

Criminal Justice, Inc.

University of Chicago Law School
187
3.

Why Civil and Criminal Procedure Are So Different: A Forgotten History

University of Wisconsin Law School
168
4.

What Not to Do When Your Roommate Is Murdered in Italy: Amanda Knox, Her 'Strange' Behavior, and the Italian Legal System

Emory University School of Law
165
5.

Evading Miranda: How Siebert and Patane Failed to Save Miranda

University of Houston Law Center
145
6.

The Unconstitutionality of Criminal Jury Selection

Harvard Law School
139
7.

Remorse Bias

University of Nevada, Las Vegas, William S. Boyd School of Law
128
8.

Fourth Amendment Fairness

University of California, Los Angeles (UCLA) - School of Law
97
9.

Critical Issues Affecting the Reliability and Admissibility of Handwriting Identification Opinion Evidence — How They Have Been Addressed (or Not) Since the 2009 NAS Report, and How They Should Be Addressed Going Forward: A Document Examiner Tells All

Independent
90
10.

White Paper of Democratic Criminal Justice

Northwestern University - Pritzker School of Law, Willamette University College of Law, Wayne State University Law School, University of Illinois College of Law, University of Virginia School of Law, Australian National University (ANU) - Research School of Social Sciences (RSSS), Northwestern University - Pritzker School of Law, University of Stirling, Bowling Green State University, Northwestern University - Pritzker School of Law
86

December 30, 2017 | Permalink | Comments (0)

Friday, December 29, 2017

"Warrantless Border Searches: The officer ‘searched through every email and intimate photos of my wife’"

From Just Security, via the NACDL news scan:

Earlier this year, the U.S. government released statistics confirming that border agents are searching thousands of travelers’ laptops, cell phones, and other electronic devices each month. Now, as Charlie Savage and Ron Nixon report for the New York Times, the Knight First Amendment Institute at Columbia University has obtained a trove of traveler complaints that illuminates the experiences behind those statistics. These complaints reveal the range of discriminatory, demeaning, and gratuitously intrusive searches that travelers have endured at the border.

December 29, 2017 | Permalink | Comments (0)

"Why Trials Are Disappearing"

Bill Otis has this post at Crime & Consequences. In part:

My years as an AUSA tell me that the reason defendants take the deal is that they are ice cold on the evidence and understandably prefer that their behavior not get the full airing a trial would bring.
 
Often, the best evidence is the surveillance tape.  For example, this one

December 29, 2017 | Permalink | Comments (0)

Thursday, December 28, 2017

"Pot Legalization Is Transforming California’s Criminal Justice Landscape. Here’s How."

Mother Jones has the story, via the NACDL news scan:

We answer many of your legalization questions right here. But with legal sales on the horizon, you might also be wondering: What happens to the people already in jail on marijuana charges? And how will pot be policed? And will that old conviction still be on my record?

In fact, the punishment schemes changed in November 2016, at which time people serving sentences for or previously convicted of a cannabis-related offense could start applying to have their sentences reduced or convictions “redesignated.” More than 4,500 people have already done so, and the legal changes could have a profound impact on hundreds of thousands of lives down the road. Here’s a rundown of what’s changed, and what to expect come January.

December 28, 2017 | Permalink | Comments (0)

"Garden State perspective on sex offender castration ... for no obvious reason"

Doug Berman has this post at Sentencing Law & Policy, introducing an excerpt as follows:

This lengthy new local article from New Jersey, headlined "New Jersey child molesters won’t face castration threat any time soon," provides an example of how castration of sex offenders interests reporters even absent having an obvious reason to focus on the issue. 

December 28, 2017 | Permalink | Comments (0)

Wednesday, December 27, 2017

"Sessions rescinds protection against excessive fining by local courts"

From Jurist:

Since taking over the DOJ, Sessions has disapproved of using guideline protocols to drive policy. In a November memo [text, PDF], Sessions stated that:

the Department has in the past published guidance documents—or similar instruments of future effect by other names, such as letters to regulated entities—that effectively bind private parties without undergoing the rulemaking process. The Department will no longer engage in this practice. Effective immediately, Department components may not issue guidance documents that purport to create rights or obligations binding on persons or entities . . .

December 27, 2017 | Permalink | Comments (0)

"Reconciling Katz and the Fourth Amendment Text"

Orin Kerr has this post at The Volokh Conspiracy. In part:

Monday was the 50th Anniversary of Katz v. United States, the Supreme Court's big decision on the Fourth Amendment's "search" test. I often hear that Katz created a vague and non-textual notion of "privacy" that is unmoored from the text. But it seems to me that it's easy to reconcile Katz with the text of the Fourth Amendment. To be sure, Katz was decided in an era when text and history wasn't particularly important. If you follow what opinions say on their face, rather what they actually do, Katz seems weirdly inattentive to the text. But if you focus on what the Katz framework actually does, it seems to me, the decision is readily reconcilable with the text.

 

December 27, 2017 | Permalink | Comments (0)

Tuesday, December 26, 2017

"The Duty to Retreat in the Founding Era"

Eugene Volokh has this post at The Volokh Conspiracy. In part:

Well, it turns out that Founding-era views on this subject were rather more complex than our guesses -- based on our sense of their world-view -- might suggest.

. . .

And perhaps the complexity of the view, with its distinction between what is required for justifiable homicide and what is required for excusable, helped promote some of the uncertainty in early American law -- and that uncertainty quickly (by 1806) turned into the general stand-your-ground / duty-to-retreat debate.

So we have a longstanding debate here, and one that the Framing generation wouldn't have found to be open-and-shut in either direction.

December 26, 2017 | Permalink | Comments (0)

"Jury Finds First Batch Of Inauguration Protesters Not Guilty Of Riot Charges"

From NPR, via the NACDL news scan:

"From the start, government prosecutors did not attempt to prove that any of the defendants had personally committed acts of violence or vandalism. Instead they argued that the entire group of protesters, many of whom wore face masks, was guilty of supporting and providing cover as others smashed windows downtown and set fire to a parked limo on K Street. ...

"Much of the evidence consisted of a variety of videos, from security cameras, police helicopters and, in some cases, posted to social media by the defendants themselves. Prosecutors also interviewed dozens of witnesses, but none who could identify any of the defendants as a perpetrator."

December 26, 2017 | Permalink | Comments (0)

Sunday, December 24, 2017

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

The Challenges of Prediction: Lessons from Criminal Justice

Georgetown University Law Center
194
2.

Decoding Guilty Minds

Court of Federal Claims - Office of Special Masters, University of Minnesota Law School, University of Virginia - School of Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences and University of California, Irvine School of Law
192
3.

What Not to Do When Your Roommate Is Murdered in Italy: Amanda Knox, Her 'Strange' Behavior, and the Italian Legal System

Emory University School of Law
165
4.

A New Mens Rea for Rape: More Convictions and Less Punishment

Boston College - Law School
99
5.

White Paper of Democratic Criminal Justice

Northwestern University - Pritzker School of Law, Willamette University College of Law, Wayne State University Law School, University of Illinois College of Law, University of Virginia School of Law, Australian National University (ANU) - Research School of Social Sciences (RSSS), Northwestern University - Pritzker School of Law, University of Stirling, Bowling Green State University, Northwestern University - Pritzker School of Law
85
6.

Inclusive Immigrant Justice: Racial Animus and the Origins of Crime-Based Deportation

New York University School of Law Immigrant Rights Clinic
82
7.

How Does the Law Put a Historical Analogy to Work?: Defining the Imposition of ‘A Condition Analogous to That of a Slave’ in Modern Brazil

University of Michigan Law School, CEFOR (Center for Continuing Education and Professional Development) - Chamber of Deputies and UFMG
79
8.

Rethinking the Boundaries of 'Criminal Justice' (Book Review)

University of Colorado Law School
66
9.

Daredevil: Legal (and Moral?) Vigilante

University of Oklahoma College of Law
63
10.

Law, Coercive Enforcement, and Practical Reason

University of Washington - School of Law
61

December 24, 2017 | Permalink | Comments (0)

Saturday, December 23, 2017

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Assessing Risk Assessment in Action

George Mason University - Antonin Scalia Law School, Faculty
298
2.

Criminal Justice, Inc.

University of Chicago Law School
185
3.

Why Civil and Criminal Procedure Are So Different: A Forgotten History

University of Wisconsin Law School
166
4.

What Not to Do When Your Roommate Is Murdered in Italy: Amanda Knox, Her 'Strange' Behavior, and the Italian Legal System

Emory University School of Law
165
5.

Evading Miranda: How Siebert and Patane Failed to Save Miranda

University of Houston Law Center
143
6.

The Unconstitutionality of Criminal Jury Selection

Harvard Law School
136
7.

Remorse Bias

University of Nevada, Las Vegas, William S. Boyd School of Law
126
8.

Fourth Amendment Fairness

University of California, Los Angeles (UCLA) - School of Law
96
9.

Critical Issues Affecting the Reliability and Admissibility of Handwriting Identification Opinion Evidence — How They Have Been Addressed (or Not) Since the 2009 NAS Report, and How They Should Be Addressed Going Forward: A Document Examiner Tells All

Independent
87
10.

White Paper of Democratic Criminal Justice

Northwestern University - Pritzker School of Law, Willamette University College of Law, Wayne State University Law School, University of Illinois College of Law, University of Virginia School of Law, Australian National University (ANU) - Research School of Social Sciences (RSSS), Northwestern University - Pritzker School of Law, University of Stirling, Bowling Green State University, Northwestern University - Pritzker School of Law
85

December 23, 2017 | Permalink | Comments (0)

Friday, December 22, 2017

Penney on Interrogating Uncounseled Detainees in Canada

Steven Penney (University of Alberta - Faculty of Law) has posted Should Prosper Warnings Be Given to Non-Diligent Detainees Who Waive the Right to Counsel? (Criminal Reports (7th), vol. 39, p. 33 (2017)) on SSRN. Here is the abstract:
 
In R v Fountain, the Ontario Court of Appeal grappled with an issue that has vexed courts for over three decades: how to define and apply the “reasonable opportunity” that police must afford detainees to exercise their right to counsel under section 10(b) of the Charter. As many commentators have observed, the jurisprudence on this question is troublingly inconsistent. It has also been complicated by the Supreme Court of Canada’s directive in R v Prosper, which requires police to issue a special caution to detainees who invoke the right to counsel but later purport to waive it. That warning informs detainees that they are entitled to a reasonable opportunity to contact a lawyer and that police are obliged to “hold off” from questioning them or inducing other self-incriminating evidence until that opportunity expires. However, as did the Ontario Court of Appeal in Fountain, most courts have held that police need not give this “Prosper warning” to detainees who have failed to diligently pursue their opportunity to talk to counsel.

Continue reading

December 22, 2017 | Permalink | Comments (0)

Soreide on Unenforced Anti-corruption Laws

Tina Soreide (Norwegian School of Economics (NHH) - Department of Accounting, Auditing and Law) have posted Regulating Corruption in International Markets: Why Governments Introduce Laws They Fail to Enforce (The Oxford Handbook on International Economic Governance and Market Regulation. Edited by Eric Brousseau, Jean Michel Glachant and Jérôme Sgard. 2018 Forthcoming) on SSRN. Here is the abstract:
 
Corruption allows firms to earn profits unfairly. In exchange for bribes and inducements that occupy a gray zone of uncertain legality, government officials and politicians offer firms better deals, terms, or benefits than they would otherwise obtain. These unfair advantages are sought by companies for a wide variety of reasons --to win contracts; to obtain production licenses, import permits, or permits to acquire a competitor; to secure subsidies, tax rates (or tax holidays), or tolerance for cartel collaboration; or to achieve any number of other corporate goals. Through corruption, firms can effectively buy impunity for an equally wide range of harmful actions, from producing poor-quality or even dangerous products and services to polluting the environment, violating human rights violations, and conducting illegal trade.

This drafted book chapter explains why many initiatives against bribery in international markets seem dysfunctional. Reasons are categorized as (i) “technical reasons” including inherent challenges associated with the crime and barriers for efficient enforcement; (ii) “institutional reasons” meaning challenges associated with the organization of various enforcement functions, and (iii) “political reasons” comprising the backdrop for political priorities as well as the relevance of government’s coordination of anticorruption strategies internationally.

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December 22, 2017 | Permalink | Comments (0)

Thursday, December 21, 2017

Weijers et al. on Juvenile Justice and Juvenile Crime

Ido WeijersStephanie Rap and Kristien Hepping (Independent, Department of Child Law, Leiden Law School and Independent) have posted Juvenile Justice and Juvenile Crime: The Tradition and Topicality of an Interdisciplinary Approach (Overarching Views of Delinquency and Deviancy. Rethinking the Legacy of the Utrecht School, 2015) on SSRN. Here is the abstract:
 
Juvenile justice has played a role throughout the history of the Willem Pompe Institute. The intellectual work that has been done in this specific field can be characterized by three typical features: its interdisciplinary nature, its orientation on the practice of criminal law and its orientation on the world of experience. Nowadays, the original, broad interdisciplinary tradition of the Willem Pompe Institute is relatively little known. Actually, there were two well-known ‘Utrecht Schools’ before and after World War II: the small circle of Pompe, Kempe and Baan and their staff, and a much broader Utrecht academic circle. First, this chapter will briefly refer to this intriguing and rarely studied aspect of the genesis of the Willem Pompe Institute and it will show how its intellectual work in the field of juvenile justice must be understood in this context. Then, it will focus on the topicality of an interdisciplinary approach in the study of juvenile justice and juvenile crime and it will sketch the main lines of research that have recently been developed in these fields at the Willem Pompe Institute.

December 21, 2017 | Permalink | Comments (0)

Glazier et al. on The DOD Law of War Manual

David W. GlazierZora ColakovicAlexandra Gonzalez and Zacharias Tripodes (Loyola Law School Los Angeles, Loyola Law School Los Angeles, Loyola Law School Los Angeles and Loyola Law School Los Angeles) have posted Failing Our Troops: A Critical Assessment of the Department of Defense Law of War Manual (42 Yale Journal of International Law215 (2017)) on SSRN. Here is the abstract:
 
In June 2015 the Department of Defense (DoD) General Counsel issued a 1,200 page manual providing the U.S. military its first unified guidance on the law governing armed conflict. Unfortunately, despite some positive attributes including an unequivocal condemnation of torture, it is badly flawed. Sporadic criticism, including media outrage over its treatment of the press, led DoD to issue two slightly revised 2016 versions, making modest changes to its language addressing reporters and proportionality when conducting attacks.

This article provides the first comprehensive critique to date, noting the manual’s uncertain hierarchical status or legal effect given its express disclaimer to not “necessarily reflect...the views of the U.S. Government as a whole.” Stylistically, it is twice the length it should be, suffering from unnecessary repetition and internal inconsistencies that undermine its utility as a practical reference for American troops.

Continue reading

December 21, 2017 | Permalink | Comments (0)

Wednesday, December 20, 2017

"This Court Offers The Homeless A Fresh Start Instead Of Punishment"

From Honolulu Civil Beat, via the NACDL news scan:

He was four years into homelessness and had been to court so many times the bailiff recognized him. Prichett told the judge he wanted an attorney. At the Office of the Public Defender, he learned about Community Outreach Court, a program that would resolve his legal issues and lead him to services that put a roof over his head. 

. . .

Nearing its first anniversary, the fledgling court program has helped Prichett and 34 other people dig themselves out of what he calls “that deep hole with all the tickets” in exchange for community service hours rather than jail time or fines.
The program is available to defendants with low-level, nonviolent offenses, including being in a park after hours, camping without a permit and driving without a license.

December 20, 2017 | Permalink | Comments (0)

Gainford on Female Criminality

Amy Gainford (The University of Leeds, School of Law) has posted Mad, Bad or Sad? The Historical Persecution of Women and the Birth of Female Criminality on SSRN. Here is the abstract:
 
Throughout history the notion of the ‘female criminal’ has been something of a taboo, an almost morbid curiosity to male dominated societies. As such through misogynist crusades they have attempted to eradicate the world of any women who did not meet the criteria that society dictates. Women who were outspoken and passionate were condemned. Numerous methods were employed to keep women in their place. From the early persecution of witch-hunts in the 15th-17th century to the medicalization of their melancholy in the Victorian era, women were suppressed. Early criminologists ‘discovered’ the biological elements of female criminality and contemporary Criminal Justice System and the mainstream media perpetuated this image. In doing so the disdain from the general public towards criminal women has grown. Often the combination of public hatred and the media’s macabre portrayal creates something of a modern day witch-hunt against these women. Perhaps this is because events of the past ‘demonstrate’ women behaving badly or because of misogyny so deeply ingrained within out society that we cannot escape it. These beliefs that women are fundamentally, biologically evil have seeped into mainstream societal systems that aim to serve the people but instead persecute an entire sub-section of society.

December 20, 2017 | Permalink | Comments (0)

Tuesday, December 19, 2017

Whelan on European Cartel Regulation

Peter Whelan (University of Leeds) has posted European Cartel Criminalisation and Regulation 1/2003: Avoiding Potential Problems (Chapter 6, The Consistent Application of EU Competition Law - Substantive and Procedural Challenges, Almășan and Whelan (eds), (Springer, 2017)) on SSRN. Here is the abstract:
 
There is a growing tendency within the EU to criminalise ‘hard core’ cartel activity. It is frequently argued that this type of enforcement is superior to administrative enforcement in achieving the deterrence of ‘hard core’ cartel activity. While the criminalisation of cartels has some merit in theory, it also engenders significant practical problems that need to be overcome if criminalisation is to be as effective as claimed. One of the major challenges in this context is the challenge of respecting the dictates of EU, in particular those contained within Regulation 1/2003. Indeed, that particular implementing Regulation, if applicable to cartel criminalisation within an EU Member State, can arguably have a significant impact on the content and operation of the national criminal cartel offence. 

Continue reading

December 19, 2017 | Permalink | Comments (0)

Hales on Migrant Victims of Trafficking

Liz Hales (University of Cambridge) has posted The Criminalisation and Imprisonment of Migrant Victims of Trafficking (Oñati Socio-Legal Series, Vol. 8, No. 1, 2018) on SSRN. Here is the abstract:
 
This paper outlines the key elements of research that was carried out between 2010 and 2011 at the Institute of Criminology, University of Cambridge by Hales and Gelsthorpe (2012) on the Criminalisation of Migrant Women in terms of goals, research methods, key findings and resultant policy and practice implications. It then goes on to document developments in the UK since publication of the findings and conclusions that we can draw from these in terms of meeting the challenges of combatting human trafficking.

December 19, 2017 | Permalink | Comments (0)